The opinion of the court was delivered by: Richard Mills, District Judge:
This cause is before the Court for resentencing of the
Defendant on the Defendant's motion for modification of his
original sentence in light of the retroactive amendment of the
sentencing guidelines. The Court will consider modification of
the Defendant's original sentence only insofar as that
sentence is affected by the amended guidelines.
On February 13, 1989, the Defendant pled guilty to the
offenses of conspiracy to distribute LSD and possession with
intent to distribute LSD, and the Defendant was subsequently
sentenced to a term of imprisonment of 192 months. Since that
time, the U.S. Sentencing Guidelines have been retroactively
amended to modify the calculation of the weight of LSD to be
attributed to a defendant. The LSD possessed by the Defendant
in this case was contained on absorbent blotter paper with a
gross weight of 109.51 grams. U.S.S.G. § 2D1.1(c) now
prescribes a weight of .4 milligrams for each dose of LSD
contained on a sheet of blotter paper.
The blotter paper possessed by the Defendant contained
11,456 dosages of LSD, which when multiplied by .4 milligrams
results in a total weight of 4.58 grams of LSD. Consequently,
the Defendant has a base offense level of 28 points, pursuant
to U.S.S.G. § 2D1.1(c)(8). Given the Defendant's criminal
history category of III and a three-point offense level
reduction for acceptance of responsibility, the appropriate
sentencing range under the revised guidelines is 70 to 87
However, 21 U.S.C. § 841(b)(1)(A)(v) provides that a
defendant shall receive a mandatory minimum sentence of 10
years' imprisonment for offenses involving "10 grams or more of
a mixture or substance containing a detectable amount of . . .
LSD." The U.S. Supreme Court has held that for purposes of this
mandatory minimum statute, the term "mixture or substance"
includes the "blotter paper customarily used to distribute
LSD." Chapman v. United States, 500 U.S. 453, 461, 111 S.Ct.
1919, 1925, 114 L.Ed.2d 524 (1991). Because the total weight of
the blotter paper possessed by the Defendant which contained
the dosages of LSD was 109.51 grams, the Defendant qualifies
for the mandatory minimum sentence of
21 U.S.C. § 841(b)(1)(A)(v) of 120 months, or 10 years.
The Defendant argues that due to the fact that the
sentencing guidelines have been retroactively amended to
reflect dosages as the basis for the calculation of LSD
weights, the Defendant should only be held accountable for
4.58 grams of LSD, thus eliminating the imposition of a
mandatory minimum sentence of 10 years. However, the
background commentary to § 2D1.1(c) of the sentencing
guidelines specifically states that "this [revised] approach
[for determining LSD weights] does not override the
applicability of `mixture or substance' for the purpose of
applying any mandatory minimum sentence (see Chapman; §
5G1.1(b))." (emphasis added).
U.S.S.G. § 5G1.1(b) states that "[w]here a statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence." In other words, if a
statute prescribes a mandatory minimum sentence, that statute
shall prevail over the sentencing range prescribed by the
guidelines. Thus, the mandatory minimum sentence of 120 months
mandated by 21 U.S.C. § 841(b)(1)(A)(v) supersedes the
Defendant's revised guideline range of 70 to 87 months.
Such a finding derives from a reading of the plain language
of the last sentence of the commentary to U.S.S.G. § 2D1.1(c)
referring to the Chapman case and U.S.S.G. § 5G1.1(b). The
commentary specifically indicates that the U.S. Sentencing
Commission does not intend the statute governing mandatory
minimum sentences to be affected by the revised method of
calculating LSD weights. For this Court to hold otherwise would
result in the nullification of the Chapman decision as it
relates to statutorily imposed mandatory minimum sentences, the
validity of which the Sentencing Commission expressly chose to
recognize. Consequently, the Defendant properly qualifies for a
mandatory minimum sentence of 120 months' imprisonment.
Ergo, the Defendant's sentence of imprisonment is accordingly
reduced from 192 months to 120 months. All other aspects of the
Defendant's original sentence remain unchanged.
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